D.P. Mohapatra, J.
1. The short question involved in this appeal is whether the custody of the minor boy Sanjeeb Kumar Dasgupta should continue with his mother Smt. Saudamini Misra, the respondent till the disposal of the proceeding in the Court below or the status quo should be disturbed and custody should be restored to his father Manila I Dasgupta, the appellant.
The appeal under Section 28 of the Hindu Marriage Act, 1955 (for short 'the Act') is directed against the order dt. 25-11-1983 by the Subordinate Judge, First Court, Cuttack in O. S. No. 32/82 directing that Sanjeeb Kumar shall remain in custody and care of the respondent till the final disposal of the divorce proceeding. The proceeding before the lower Court was initiated on a petition filed by the respondent under Sections 13 and 26 of the Hindu Marriage Act seeking a decree of divorce under Section 13(1)(ia) of the Act severing the marriage tie between the parties and for a further direction that custody of the minor, Sanjeeb Kumar Dasgupta, be given to the mother. The ground for seeking divorce was long continuing cruelty allegedly exercised by the appellant towards the respondent. It is not necessary to state in detail the facts narrated in the petition for divorce filed by the respondent and in the objection to the said petition filed by the appellant. The facts material for the purpose of the present proceeding may be stated as follows : The respondent comes from a respectable conservative Oriya Bramhin family. She is the grand-daughter (son's daughter) of late Lokanath Misra, ex-Head of the Department of Chemistry, Revenshaw College, Cuttack. According to the respondent, her family is well connected and several relations of her are well placed in life. The appellant comes from a poor middle class Bengali family who after migrating from East Bengal has settled down at Daspalla in the district of Puri. The respondent has joined the film industry and has been working as an actress in different Oriya films.
The appellant and respondent were married according to Hindu rites on 7th of Sept. 1966. Thereafter the respondent left the home of her parents and lived with her husband, the appellant. Her first son Sanjeeb Kumar was born, according to her, on 26-12-1968 though in the school Register his date of birth was shown as 20-12-1969. Her second son Sandeep Kumar Dasgupta was born on 14th Oct., 1970. Shortly after his birth he was given to the elder brother of the appellant, Sukumal Dasgupta, who resides at Sambalpur. There is no controversy regarding the custody of Sandeep Kumar and as such he is in no way concerned with the present proceeding. The respondent goes on to narrate in her petition that as she gained name and fame in her professional career and earned considerable wealth, the appellant became jealous of her and started ill-treating her. She bore the ill-treatment for considerable time but finally had to part company with her husband in September 1981, when she could not bear his cruelty any longer.
It is further stated in the petition that the first child of the couple Sanjeeb Kumar Dasgupta has been in her care and custody throughout, even after her separation from her husband. He is now a student of Standard VI of 'Bleased Sacrament School' at Puri and the boy is doing very well both in his studies and also in his extra curricular activities like debates, games etc. The respondent claims her average monthly income to around Rs. 2000/-, She further claims that she has sufficient means to maintain her minor son and can afford to provide him proper education and all reasonable comforts in life. In support of her claim she has filed some documents showing that she has fixed deposits of Rs. 60,000/-.
According to respondent, the appellant earns a meagre income of about Rs. 350/- to Rs. 400/- per month as a reporter in Daily News Paper 'Prajatantra'. He lives alone and has the habit of drinking. In these circumstances she prays that the custody of the boy should be left with his mother while granting the decree for divorce as well as during the pendency of the proceeding. She filed a separate application for a direction that the custody of the minor should continue with her till the disposal of the divorce proceeding, substantially repeating the allegations made in the other petition. She further stated that the respondent (appellant?) was trying to take the boy by some means or other and hence the urgent necessity for the court to issue a direction in this regard.
2. The appellant, filed his objection denying the allegations made by the respondent in her petition. Though he did not file any application for vesting the custody of minor Sanjeeb Kumar with him he stated in his objections to the two petitions of the respondent mentioned above that it is not desirable that the custody of the boy should be left with the mother since that is likely to make him wayward and the boy is likely to loose interest in education which would affect his future prospects in life. According to the appellant, the respondent moves about in different places in India in connection with her film career and the boy was being taken with her as a result of which he used to remain -absent from the school. She also does not lead a life congenial to a respectable family and this is also likely to affect the character of the boy.
3. While the application for a direction that custody of the minor boy should remain with the mother till the disposal of the proceeding of the divorce was supported by an affidavit to which an objection was filed by the appellant, it was not supported by any affidavit. None of the parties led oral evidence in the proceeding in support of their allegations in the pleadings. They remained content with filing some documents, like letters exchanged between the spouses and certificate from the school showing the achievements of Sanjeeb Kumar.
4. The Subordinate Judge on a consideration of the matter allowed the petition under Section 26 filed by the respondent and directed that the custody of the minors Sanjeeb Kumar should continue with his mother till disposal of the divorce proceeding.
5. Shri S. K. Dey, learned counsel for the respondent has raised a preliminary objection regarding maintainability of the appeal. He contends that the impugned order being an interim order directing custody of the minor to remain with the respondent during the pendency of the proceeding for divorce, an appeal is not maintainable under Section 28 of the - Hindu Marriage Act. 1955.
Shri M. Patra, learned counsel for the appellant contesting this position submits that the impugned order is not an interim order but a final order and hence the appeal is maintainable. Sub-sections (2) and (3) of Section 28 of the Hindu Marriage Act, 1955 which are relevant for the present purpose provide as follows : --
(2) Orders made by the Court in any proceeding under this Act. under Section 25 or Section 26 shall, Subject to the provisions of Sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction.
(3) There shall be no appeal under this section on the subject of costs only.'
From the aforesaid provisions it is clear that appeal lies, in the case of orders only if these are orders made under Section 25 or 26. However, even under these sections, if any interim order is made it is not appealable and order regarding costs is also not appealable.
As already noticed the present appeal has been filed under Section 28 of the Act and it arises out of a proceeding under Section 26 of the Act. Under the impugned order the trial court has directed that Sanjeeb Kumar shall remain in the custody and care of the petitioner till the final disposal of the divorce proceeding. Thus, there is no doubt that the order is an interim order and the arrangement made thereunder is liable to be modified at the time of final disposal of the divorce proceeding. The contention of the learned counsel for the appellant that the trial court at first passed an ex parte order directing custody of the minor to remain with the respondent and after notice to the appellant and on consideration of his objection in the matter passed the impugned order does not change the nature and character of the order. In this view of the matter, the objection raised on behalf of the respondent to the maintainability of the appeal has to be sustained. However, this could not be sufficient to dispose of the appeal since the impugned order though not appealable under Section 28 of the Act would still be subject to the revisional powers of this Court. As such the impugned order has to be considered on its merit.
6. As already noticed earlier the question involved in the case relates to custody of the minor Sanjeeb Kumar. The position is well settled that while judging the question of custody of the minor, welfare of the minor is of primary and paramount consideration. The expression 'welfare' must be read in its widest amplitude as meaning and including every circumstance which must be taken into consideration. This position is sufficiently indicated in Section 26 of the Act which reads as follows : --
'26. In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the Court may also from time to time revoke, suspend or vary any such orders and provisions previously made.'
The section vests a complete discretion in the Court to make such orders as it may deem just and proper taking into consideration the welfare of the minor.
A perusal of the impugned order shows that the trial judge has taken into account the economic condition of the appellant and the respondent. The fact that the respondent conies from a family of highly educated persons, that Sanjeeb Kumar is doing well in his studies and in his extra curricular activities and also the fact that the minor has all along been in the care and custody of his mother, the respondent (sic). The Court, as it appears from the impugned order, has also talked with Sabjeeb Kumar in order to ascertain his preference regarding the custody. The preference expressed by the minor has been recorded by the Court in the following manner : --
'In presence of the learned Advocates of both the parties, I wanted to know from Sanjeeb Kumar, who came to my chamber today, as to with whom he would like to reside. Sanjeeb Kumar spoke to me in English language. He stated before me that he would like to stay with his mother with whom he has been residing since his childhood. He told me that her mother has great love and affection for him. He declined to stay with his father. It will be hazardous to allow the father to take Sanjeeb Kumar against his wish.'
The principal allegation of the appellant that the education of minor was suffering since he was being taken with his mother when she goes to different places in the country in connection with her work has been held to have not been substantiated with any material. In course of his argument, the learned counsel for the appellant could not place any material before me in support of this allegation. There is also no material in support of the allegation of the appellant that the life style of the respondent is not congenial for the physical and mental welfare of the minor has also not been supported by any material. In these circumstances, it cannot be said that the trial Court while exercising his discretion in making the arrangement under the impugned order was either guided by irrelevant or extraneous considerations or that it overlooked any relevant material on record.
7. In view of the aforesaid analysis the appeal fails both on the ground of maintainability as well as merit and it is accordingly dismissed. Both the parties shall bear their respective costs of this proceeding.